Eggleton v. Whittle , 84 Va. 163 ( 1887 )

Fauntleroy, J.,

delivered the opinion of the court.

S. G. Whittle, receiver, recovered a judgment with the collection of which he was charged, against Joseph II. Eggleton and Allen GL Price; and he brought this suit to enforce the lien of his said judgment upon the lands of said Eggleton and Price, the judgment debtors. Eggleton’s liability arose in this way: he was the purchaser of a tract of land, at a judicial sale, from George W. Booker, the commissioner of sale. He paid the- purchase money to Booker, who had not qualified himself as commissioner by giving bond, and who never accounted for the money, and Eggleton was required to pay the said purchase money again; and judgment was accordingly duly rendered against him and his surety, Allen G. Price, for the amount, $439 06, besides interest and costs.

While the proceeding in which this judgment was rendered against Eggleton and Price was going on, Eggleton obtained from Booker a deed of trust on some real estate to indemnify him against the loss which was threatened to he visited upon him by his having wrongfully paid the said purchase money to Booker, for which Booker failed to account. Whittle, receiver, issued execution on the judgment against Eggleton, the purchaser of the land, and' Price, his surety, and the execution was returned “no effects.”

Whittle, the receiver, then directed his attention to the deed of trust which Eggleton had obtained from Booker for his indemnity; and he filed his petition in a suit which had been brought by Booker’s judgment creditors to subject Booker’s lands to the payment of their claims, setting out his judgment against Eggleton and his unavailing execution thereon, and claiming that his said execution was a lien upon whatever amount might he found due from Booker to Eggleton, and •could be made available under tbe deed of trust from Booker for Eggleton’s benefit.

Eggleton appeared in tbe same suit and aúswered the said petition of Whittle, receiver, and resisted the prayer of his petition upon two grounds: first, that he claimed the amount due him from Booker and secured by the deed of trust as his homestead, and it was not therefore liable to Whittle’s execution ; second, that he had assigned away the whole amount due him from Booker under the said deed of trust—one-fourth to his counsel for fees, and three-fourths to his brother, John Gr. Eggleton, for moneys advanced to him.

Being thus resisted and thwarted by Eggleton, and it being manifest that he could make no sure calculation as to what would be the final result of his claim in that suit, Whittle, receiver, then brought his own suit against Eggleton and Price to enforce the lien of his judgment upon their lands. Eggleton fought, and is still fighting Whittle’s claim to an execution lien on the amount due to him, as reported among the other liens on Booker’s lands, in the suit of Booker’s creditors against Booker; and now, he resists the suit of Whittle, receiver, to enforce the lien of his judgment on Eggleton’s lands, and contends that Whittle should be confined to the contention and doubtful issue of the Booker judgment creditor’s suit. Holding both judgment and execution liens against Eggleton, Whittle, when he sought to satisfy his claim out of Eggleton’s reported interest in the Booker suit, and being obstructed by Eggleton’s defences therein, seeks in this suit to enforce his judgment lien upon Eggleton’s lands, is confronted by Eggleton with the demand that he shall retire from this suit, and return to and abide by the uncertain issue of the claim he had already vainly asserted in the Booker creditor’s suit.

Eggleton insists that Booker is the “primary ” debtor, and therefore equity must require Whittle to exhaust pursuit of him, before pursuing Eggleton.

Booker is not a debtor to Whittle, receiver, who has a judgment against Eggleton and Ms surety, Price, but no judgment against Booker. The only way WMttle, receiver, could come into the Booker judgment creditor suit against Booker was by asserting the lien of Ms execution on the claim ascertained in that suit in favor of Eggleton. Booker is not a party to the suit of WMttle, receiver, to enforce the lien of Ms judgment on Eggleton’s lands; and all that the. court could do in this suit was to enforce WMttle, receiver’s, judgment lien, or to turn Mm out of court altogether. Even if Booker were a party to the suit of WMttle, receiver, against Eggleton no decree against Booker would avail anything, as the record shows his utter insolvency.

The circuit court decreed that the judgment of WMttle, receiver, is a lien upon the lands of Eggleton, the judgment debtor, and ordered the lands to be sold to satisfy the said judgment.

We are of opinion that the decree complained of is right, and to affirm the same.

Decree aeeirmed.